It's Time for the Supreme Court's Sony Betamax Decision to Be Reversed:
The Latest in Online Copyright Infringement-- Offering Menus of Links to Illegal Video Copies of Television Shows and Movies

By MARCI HAMILTON
Thursday, Apr. 19, 2007

On Tuesday, the Wall Street Journal's front page reported on the new practice of creating "guerrilla video sites" -- websites that offer menus of links to illegal video copies of television shows and movies.

For obvious reasons, the television and motion picture industries are not happy with the sites. For equally obvious reasons, the practice of posting the links is illegal: a prime example of contributory copyright infringement.

In this column, I will explain one of the leading influences on the creation of such sites: The Supreme Court's 1984 decision in the Sony case, which gave the Court's blessing to the use of VCRs. Then, twenty-three years ago, the Court - understandably - did not foresee how copies would be made, used, and stored in the future; as a result, it set a precedent that is encouraging contributory infringers to believe that they might not actually be infringing copyright.

Guerrilla Video Sites: Why "Merely" Linking Is No Defense

If one ever lacked a reminder of the greediness of human nature, a few minutes on the Internet would make the point impossible to forget. The list of entities willing (at some point) to use the Internet to get for free what they should have purchased is long.

Originally, Napster was their poster boy, but now we have high school dropouts "pioneering" a new way to steal content, on their guerrilla sites, by simply linking to content on sites whose servers are located in places like China -- which is not known for its copyright enforcement, to put it mildly.

These "guerrilla" sites are obviously violating copyright law, though their "defense" is that the illegal material is not on their site. Can there be any doubt that they are committing contributory copyright infringement, when the entire purpose for the site is to ceaselessly compile and collect links to available illegal material? Indeed, if their "customers" complain about the quality of a link, they search assiduously for a better one - to make their users' copyright-infringing viewing even more pleasant.

Those who may be foolish enough to advertise on these sites should beware as well: Their dollars are also contributing to the business of contributory copyright infringement.

As with the original incarnation of Napster, the problem here is not only with the service, but also with those all too willing to enjoy the illegal materials. If every citizen who would never dream of stealing groceries from a supermarket, would also refuse to steal television shows and movies, then the guerrilla site operators would largely be entertaining themselves. Unfortunately, it is taking longer than it should for even otherwise upstanding citizens to decide to stay solely on the legal side of the copyright line.

It took lawsuits and threats to universities to bring file-sharing sites like the early Napster somewhat under control, and it will doubtless take similar measures here. No doubt, these measures will be at least somewhat effective: Once any potential advertisers understand the illegal nature of the service they are supporting, and their own possible legal exposure, they are likely to take their dollars elsewhere.

On the other hand, users may still end up being directly charged - or voluntarily paying to keep the sites afloat, as sometimes occurs with popular blogs. In addition, the site creators may continue to work onward for the sheer thrill of lawbreaking and prestige within their communities.

The Sony Decision: A Crucial Error by the Supreme Court

As noted above, the Supreme Court's 1984 decision in Sony paved the way, in a sense, for sites like these. There, the Court held that Betamax was not liable for copyright infringement for copies made by their machines of television shows, because its product was used solely for "time-shifting" television viewing - a "substantial noninfringing use"-- and not for librarying the materials. On this rationale, the Court found the copying to be "fair use," despite the fact that entire shows were copied.

Time does, however, test decisions, and this one should be overruled - or, at a minimum, updated to clarify that current VCR-like practices on the Internet are nevertheless contributory copyright infringements.

Consider, for example, one key basis for the Sony holding that is utterly absent with respect to the guerrilla sites: The Sony Court held that there was a significant likelihood that the copyright holders licensing their work for broadcast television would not object to the copying for the purpose of time-shifting. This was a strange point even at the time: Who did the Court think was complaining about the copying? Now, the copyright holders' objections to infringement, including to guerrilla sites, are deafening.

Another key basis for the Sony holding is also lacking today. There, the Court found no likelihood of harm to a potential market: In its eyes, it didn't and shouldn't matter to advertisers and copyright holders whether VCR users watched a show the moment it aired, or a few hours later.

Even then, the existence of users who "libraried" tapes made this argument questionable. Today, the argument is demonstrably entirely wrong: Users frequently do library what they download, not to mention make additional copies for others, and copyright infringement can drain profits that should go to the copyright user. In addition to television shows, as noted above, guerrilla sites typically link to pirated (often lower-quality) copies of movies their users would otherwise pay to watch in the theater or on DVD. The copyright infringement is twofold: first, for the illegal copying, and second, for creating a derivative work that misrepresents the original work being pirated.

Aggressive Action Should Be Taken to Shut Down the Guerrilla Video Sites

In sum, the video guerillas are engaging in blatant contributory infringement -- and that justifies shutting down their sites. But how? When one site closes, another may open soon after. Enforcement remains very expensive for the copyright owners - and that is a serious problem.

There is, however, at least a silver lining here. It is in everyone's interest to encourage the wealthy television and motion picture industries to research technological means of setting up effective "fences" and "alarms" on the Internet. Instead of chasing infringers, we need better means of preventing poaching in the first place.

After all, we will not have creative and original works of art - such as television shows and movies worthy of copying -- unless those investing in them can ensure a return on their investment. Moreover, "fences," "alarms," and tracking devices have important side-benefits, too: They can be used to protect our children, prevent predation or catch predators, and shut down child-accessible pornography sites. The copyright industry has an opportunity here to protect its own wealth, which is the American way, but in so doing, it can also contribute to the greater safety of every American.

As it is, we remain in an Internet limbo, no longer in the Wild West but still with inadequate "fences" and "alarms."

To protect the quality of American creative works, we need to ensure the copyright laws are enforced against those, like the video guerillas, who shamelessly piggyback on others' contributions to society.


Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), will appear in paperback June 2007, and her next book, How to Deliver Us from Evil (Cambridge University Press 2008) will appear January 2008.